Military and Civilian Law
Enforcement

excerpted from the book

Inside the Shadow Government

National Emergencies and
the Cult of Secrecy

by Harry Helms

Feral House, 2003, paper

p124
The Military and Civilian Law Enforcement

In late July of 2002, proposals came from
both Republicans and Democrats to give the U.S. military a larger
and more active role in civilian law enforcement in order to battle
terrorism. In an interview televised on Fox News Sunday, Senator
Joseph Biden (D-Delaware) said that the Posse Comitatus Act of
1878, which prohibits the U.S. military from civilian law enforcement
within the United States, "has to be amended." Senator
Biden said, "We're not talking about general police power,"
but also said he was concerned about what the military could do
if they found terrorists in the United States with chemical, biological,
or nuclear weapons. "The military would not be able to shoot
to kill if they were approaching the weapons," Biden said,
nor could they arrest any of the terrorists. Tom Ridge, the homeland
security director, echoed Biden's concerns later that day on CNN.
"We need to be talking about military assets in anticipation
of a crisis event," Ridge said. "And clearly if you're
talking about using the military, then you should have a discussion
about Posse Comitatus. It's not out of the question when, in support
of civilian authorities, we would | give the National Guard or
troops arrest ability."

p126
THE POSSE COMITATUS ACT

From 1878 to World War II, the military
kept out of domestic law | enforcement, except for President Wilson's
use of Army troops in a mining labor dispute in Colorado. That
changed after Pearl Harbor. For example, the forced relocation
of Japanese Americans to detention centers was carried out by
Army soldiers. On occasion, federal troops were used to close
public highways to permit military traffic to pass or to close
off public lands, normally open to everyone, where drills and
exercises were being conducted. The degree of restraint shown
in domestic use of military forces was remarkable, considering
the tenor of the times and the threat facing the United States.
After World War II, the domestic use of regular federal soldiers
became extremely rare.

But that started to change in the 1960s
with Operation Garden Plot, which is still the basic plan for
using U.S. military forces domestically.

OPERATION GARDEN PLOT

The summer of 1967 was a violent one in
cities such as Detroit, Newark, Cleveland, Seattle, Cincinnati,
and Milwaukee, as angry blacks took to the streets and rioted.
Over one hundred cities reported riots that summer, including
small cities such as Augusta, Georgia. The riots were especially
violent in Detroit and Newark, where civil government, for all
intents and purposes, broke down for several days. Twenty-seven
people died in Newark, and forty-three died in Detroit. The riots
continued in both cities for six days before finally being brought
under control. Their effect on the nation's psyche was shattering.
In response to the riots President Lyndon Johnson issued Executive
Order 11365 on July 29, 1967. This established the National Advisory
Commission on Civil Disorders, chaired by Illinois governor Otto
Kerner. The "Kerner Commission" was directed to investigate
the causes of the riots and possible measures to prevent future
ones.

On March 1,1968, the Kerner Commission
presented its report, which included the memorable observation
that "we live in two increasingly separate Americas."
The Kerner Commission recommended improved educational opportunities,
social services, housing, and economic development in the areas
hardest hit by the riots. Because of such recommendations, the
Kerner Commission report today is remembered mainly as a statement
of social conscience and government responsibility toward America's
underclass. But a close reading of the full report reveals something
else: the Kerner Commission also recommended an expanded role
for the military in dealing with extraordinary events like the
1967 riots. In the section headed "Army Response to Civil
Disorders," the report includes such statements as "the
Department of the Army should participate fully in efforts to
develop nonlethal weapons and personal protective equipment for
use in civil disorders," and "the Army should investigate
the possibility of using psychological techniques to ventilate
hostility and lessen tension in riot control." The report
recommended improved riot control training for National Guard
troops and that the Army investigate the possibility of special
riot training for its troops.

The Army liked the Kerner Commission's
suggestions. Beside the threat of more riots in black urban areas,
protests against the Vietnam War were growing larger and more
militant. In June 1968 a "Directorate of Military Support"
had been established at the Pentagon under the Department of the
Army. According to James Button, author of Black Violence: The
Political Impact of the 1960s Riots, the Directorate had 150 officers
who monitored domestic civil disturbances around the clock, much
as their colleagues at Cheyenne Mountain maintained a constant
vigil for Soviet attack. Sophisticated computer systems were installed
to store and analyze all public displays of political dissent.
Over 20,000 troops were made available for riot control duty.
And the Directorate developed policies and advice for handling
domestic situations, much as other Army officers at the Pentagon
developed plans for repelling a Warsaw Pact attack.

Somewhere along the line, the plans produced
by the Directorate acquired the name "Operation Garden Plot,"
first publicly uttered in 1971 when Senator Sam Ervin (D-North
Carolina), chair of the Senate Subcommittee on Constitutional
Rights, held hearings about allegations of Army spying on U.S.
civilians. The hearings revealed that the Army had indeed been
keeping records on hundreds of thousands of American citizens
connected with antiwar and radical politics, and that such activities
were part of Operation Garden Plot. The Subcommittee also found
that the Army had trained civilian law enforcement workers with
simulated battles against rioters and large groups of protesters.
It also found that Army units went on alert in May 1970 for possible
response to campus demonstrations in the wake of the Kent State
shootings.

There is a large gap from 1971 to 1984
in our knowledge of Operation Garden Plot. While it was apparently
still operational in those years, information about it either
remains classified or has yet to be uncovered through Freedom
of Information Act (FOIA) requests. But Operation Garden Plot
was active in 1984-an understatement. A document titled "United
States Air Force Civil Disturbance Plan 55-1, Garden Plot"
was obtained in 1990 by researchers under a FOIA request. Dated
July 11, 1984, the document is over 200 pages (although the pages
are not numbered) and was not classified. The opening of Plan
55-1 noted, however, "Although it is unclassified, it is
for official use only as directed by AFR 12-30. This plan contains
information that is of internal use to DOD and, through disclosure,
would tend to allow persons to violate the law or hinder enforcement
of the law." It also said, "operations orders and operating
procedures must be designed to provide the highest degree of security
possible" and "in the event of organized opposition
some sort of advisory intelligence gathering capability should
be assumed."

It can be safely assumed that the Army
and Navy/Marine Corps have similar Operation Garden Plot planning
documents, and that a master plan belongs to the Department of
Defense. It is also safe to assume that FEMA and other civilian
agencies have planning documents for their participation in Operation
Garden Plot, although repeated FOIA requests to those agencies
have produced no comparable documents to the Air Force's Plan
55-1. Many believe that the release of Plan 55-1 was inadvertent
and the document should have been classified; the Operation Garden
Plot documents at other agencies are believed classified and thus
exempt from release under FOIA.

Plan 55-1 says the Air Force's role in
Operation Garden Plot would include "aerial resupply, aerial
reconnaissance, airborne psychological operations, command and
control communications systems, aeromedical evacuation, helicopter
and weather support." As an example of the Air Force's role,
Plan 55-1 includes this remarkable statement: "In response
to the US invasion of Cambodia, student unrest broke out. Under
Operation Garden Plot, from April 30 through May 4, 1970 9th Air
Force airlift units transported civil disturbance control forces
from Ft. Bragg to various locations throughout the eastern US."
This confirmed the findings of the 1971 Ervin Subcommittee.

Plan 55-1 specifies the targets of Operation
Garden Plot as "disruptive elements, extremists or dissidents
perpetrating civil disorder." "Civil disorder"
is defined as "riot, acts of violence, insurrections, unlawful
obstructions or assemblages, or other disorders prejudicial to
public law and order." It also defines "civil disturbance"
as "all domestic conditions requiring the use of federal
forces pursuant to the provisions of Chapter 15, Title 10, United
States Code." When will Operation Garden Plot be put into
effect? When situations exist "that threaten to reach or
have reached such proportions that civil authorities cannot or
will not maintain public order." The authority for putting
it into effect will be "the Presidential Proclamation and
Executive Order in which the Secretary of Defense has been directed
to restore law and order" with additional details "further
defined by the Letter of Instruction issued to Task Force Commanders
by the Chief of Staff, US Army."

Plan 55-1 states, under the heading "Force
Requirements," that "US Army and Marine Corps units
designated for civil disturbance operations will be trained, equipped
and maintained in readiness for rapid deployment, ten brigades,
prepared for rapid deployment anywhere in CONUS. A Quick Reaction
Force (QRF) will be considered to be on a 24 hour alert status
and capable of attaining a CIDCON 4 status in 12 hours."
Under the heading "Summary of the Counterintelligence and
Security Situation," it adds, "spontaneous civil disturbances
which involve large numbers of persons and/or which continue for
a considerable period of time, may exceed the capacity of local
civil law enforcement agencies to suppress. Although this type
of activity can arise without warning as a result of sudden, unanticipated
popular unrest (past riots in such cities as Miami, Detroit and
Los Angeles serve as examples) it may also result from more prolonged
dissidence. . . if military forces are called upon to restore
order, they must expect to have only limited information available
regarding the perpetrators, their motives, capabilities, and intentions."

Another FOIA request turned up United
States Army field manual 19-15, dated November 1985 and titled
"Civil Disturbances." The introduction says that the
purpose of the manual is to provide "guidance for the commander
and his staff in preparing for and providing assistance to civil
authorities in civil disturbance control operations" and
notes, "the DA Civil Disturbance Plan, known as Garden Plot,
provides guidance to all DOD components in planning civil disturbance
missions."

Field manual 19-15 further states, "the
president can employ armed federal troops to suppress insurrection,
domestic violence, unlawful assemblies, and conspiracy if such
acts deprive the people of their constitutional rights and a state's
civil authorities cannot or will not provide adequate protection
. . . federal intervention in civil disturbances begins with the
issuance of a presidential proclamation to the citizens engaged
in the disturbance."

Some of the most eye-opening sections
of field manual 19-15 discuss actions the Army could take if ordered
by the president to intervene in a civil disturbance. For example,
"when at all possible, civil law enforcement agents are integrated
with the military control force team making apprehensions,"
but "if police are not available, military personnel may
search people incident to an apprehension." Further, "authorities
must be prepared to detain large numbers of people. . . if there
are more detainees than civil detention facilities can handle,
civil authorities may ask the control forces to set up and operate
temporary facilities. . . These temporary facilities are set up
on the nearest military installation or on suitable property under
federal control. . . supervised and controlled by MP officers
and NCOs trained and experienced in Army correctional operations.
Guards and support personnel under direct supervision and control
of MP officers and NCOs need not be trained or experienced in
Army correctional operations. But they must be specifically instructed
and closely supervised in the proper use of force." The manual
includes information on processing detainees and says, "release
procedures must be coordinated with civil authorities and appropriate
legal counsel." In an echo of Lincoln's suspension of the
writ of habeas corpus during the Civil War, it further states
that if a state court issues a writ of habeas corpus demanding
a detainee be charged or released, the local Army commander should
"respectfully reply that the prisoner is being held by authority
of the United States." Concerning training for Operation
Garden Plot the manual says that the objective is to "develop
personnel who are able to perform distasteful and dangerous duties
with discipline and objectivity. . . every member of the control
force must be trained to use his weapon and special equipment,
riot batons, riot control agent dispersers and CS grenades, grenade
launchers, shotguns, sniper rifles, cameras, portable videotape
recorders, portable public address systems, night illumination
devices, firefighting apparatus, grappling hooks, ladders, ropes,
bulldozers Army aircraft, armored personnel carriers, and roadblock
and barricade materials."

Field manual 19-15 also touches on the
uses of martial law. It says "martial rule is based on public
necessity. Public necessity in this sense means public safety."
The manual continues, "If the need for martial rule arises,
the military commander at the scene must so inform the Army Chief
of Staff and await instructions. If martial rule is imposed the
civilian population must be informed of the restrictions and rules
of conduct that the military can enforce." What are these
"restrictions and rules of conduct"? According to the
manual, "during a civil disturbance, it may be advisable
to prevent people from assembling. Civil law can make it unlawful
for people to meet to plan an act of violence, rioting, or civil
disturbance. Prohibitions on assembly may forbid gatherings at
any place and time. . . making hostile or inflammatory speeches
advocating the overthrow of the lawful government and threats
against public officials, if it endangered public safety, could
violate such law."

That section of field manual 19-15 raises
the question of what exactly constitutes martial law. Interestingly,
there appear to be no federal statutes defining "martial
law," so presumably we are left with its common law definition
as control of a civilian population by military forces and the
suspension of civil law in favor of direct military orders. The
clearest statement about martial law in federal law is in the
Code of Federal Regulations, Title 32 (National Defense), Subtitle
A (Department of Defense), Chapter V (Department of the Army),
Subchapter A (Aid of Civil Authorities and Public Relations),
Part 501 (Employment of Troops in Aid of Civil Authorities). The
relevant section is 501.4, and here it is in its entirety:

501.4 MARTIAL LAW

It is unlikely that situations requiring
the commitment of Federal Armed Forces will necessitate the declaration
of martial law. When Federal Armed Forces are committed in the
event of civil disturbances, their proper role is to support,
not supplant, civil authority. Martial law depends for its justification
upon public necessity. Necessity gives rise to its creation; necessity
justifies its exercise; and necessity limits its duration. The
extent of military force used and the actual measures taken, consequently,
will depend upon the actual threat to order and public safety
which exists at the time. In most instances the decision to impose
martial law is made by the President, who normally announces his
decision by a proclamation, which usually contains his instructions
concerning its exercise and limitations thereon. However, the
decision to impose martial law may be made by the commander on
the spot, if the circumstances demand immediate action, and time
and available communications facilities do not permit obtaining
prior approval from higher authority (§ 501.2). Whether or
not a proclamation exists, it is incumbent upon commanders concerned
to weigh every proposed action against the threat to public order
and safety it is designed to meet, in order that the necessity
therefore may be ascertained. When Federal Armed Forces have been
committed in an objective area in a martial law situation, the
population of the affected area will be informed of the rules
of conduct and other restrictive measures the military is authorized
to enforce. These will normally be announced by proclamation or
order and will be given the widest possible publicity by all available
media. Federal Armed Forces ordinarily will exercise police powers
previously inoperative in the affected area, restore and maintain
order, insure the essential mechanics of distribution, transportation,
and communication, and initiate necessary relief measures.

From the wording of 501.4, it seems that
"martial law," like "national emergency,"
can mean almost anything the president wants it to mean.

p135
... the Clinton administration showed a surprising willingness
to expand the role of the military in civilian law enforcement.
For example, during the 1993 siege of the Branch Davidian complex
in Waco, Texas, the Bureau of Alcohol, Tobacco, and Firearms (BATF)
requested military support, including tanks and training sessions
by Green Berets, basing their request on a single drug charge
pending against one of the Davidians. Military lawyers blocked
the request on grounds that it would be a clear violation of the
Posse Comitatus Act.